Cite as Sendra Corp. v. Magaw, 1995 WL 434451 (D.D.C. 1995)
SENDRA CORPORATION, Plaintiff,
v.
John W. MAGAW, Director, Bureau of Alcohol, Tobacco & Firearms,
U.S. Department of Treasury, Defendant
Civ. A. No. 94-0949 (TAF).
United States District Court, District of Columbia.
July 13, 1995.
MEMORANDUM ORDER
FLANNERY, District Judge.
Pending before the Court is the plaintiffs motion to compel
the production of two documents the defendant has withheld from the
administrative record on the basis of work product immunity.
[Footnote 1] The documents, which contain the thoughts and mental
impressions of Ms. Theresa G. Ficaretta, an attorney for the
defendant, were appropriately withheld only if they were prepared
in anticipation of litigation. See Hickman v. Taylor, 329 U.S. 495
(1974).
The Court, having reviewed the documents in camera, along with
an affidavit submitted by Ms. Ficaretta, finds Ms. Ficaretta
prepared the documents in anticipation of litigation. Ms.
Ficaretta states she prepared the two documents recognizing that
litigation was likely due to the potential value of the firearms at
issue if they could be lawfully transferred to individuals as
machineguns manufactured before May 19, 1986. Ficaretta Affidavit,
paragraphs 4, 5. Ms. Ficaretta also states she knew that plaintiff
had hired an attorney, which indicated the possibility of future
litigation. Id. Although in cases of substantial need a party may
obtain items which would otherwise be protected by the work product
doctrine, see Fed. R. Civ. P. 26(b)(3), plaintiff cannot
demonstrate substantial need here.
Accordingly, upon consideration of the plaintiffs motion, the
government's opposition, and the plaintiff s reply, and after an in
camera inspection of the documents at issue, it is by the Court
this 13th day of July, 1995, hereby
ORDERED, that the plaintiff s motion is DENIED.
FOOTNOTES
1. Discovery is inappropriate in cases such as this requiring
judicial review of administrative decisions, since judicial review
is limited to the administrative record. See Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 416 (1971) (judicial review
limited to determining "whether the decision was based on a
consideration of the relevant factors and whether there has been a
clear error of judgment"). Thus, the plaintiffs "motion to compel"
is more appropriately considered a request for adjudication of the
propriety of the agency's withholding the two documents from the
administrative record.